On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-01-0048.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hayden.
Defendant Terrell Corbin appeals from his conviction, following a jury trial, on one count of second-degree robbery, N.J.S.A. 2C:15-1. For the reasons that follow, we affirm.
The State presented the following evidence at the trial. Jose Menes testified that he was walking home after work around 1 a.m. on September 14, 2008. No one was on the street when Menes suddenly heard someone approach him from behind. He turned and saw a man, later identified as defendant, who struck him in the head with a full can of soda, causing him to fall to the ground. Defendant stood over him and demanded money. Menes told defendant that he had no money, and was able to escape after defendant stumbled and fell. At this point, defendant somehow lost his shoes.
Menes ran to his residence about a block away and began banging on the window, since he did not have his keys. Before help arrived, defendant, who had followed Menes, smashed the latter's head into a post and punched him in the face, knocking out several teeth. Menes' housemate, Lorenzo Ramirez, came outside and phoned the police at Menes' request. Defendant then tried to run away, but Ramirez, Menes and Menes' half-brother, Isaac Ponz, who also lived in the house, restrained defendant until the police arrived.
Officer Lamont Poaches, along with other officers of the Roselle Police Department, arrived at Menes' residence and saw Menes and another man holding defendant down. According to Poaches, defendant did not appear to have any injuries, but Menes' face was bloodied and swollen. The police arrested defendant and took Menes to the hospital.
In contrast, defendant testified that he left his home to buy a cigar sometime after midnight, and began jogging on his way home. As he came up behind Menes, the latter, apparently thinking defendant was going to rob him, took a swing at defendant, cutting his lip. Defendant tried to defend himself and began hitting Menes two or three times, before defendant fell to the ground. Defendant lost his new sneakers in the scuffle and could not find them on the dark street. Menes left, but defendant did not see which direction he went.
Because defendant did not want to return home without the shoes, he decided to go to a friend's house to borrow sneakers. Unbeknownst to defendant, this route took him past Menes' house. As he passed the house, two men came out and "blindsided" defendant. Menes held him down while the other man hit him,
Neither Ponz nor Ramirez testified at the trial. Menes testified that Ramirez had returned to Mexico. Menes related that, although they had the same father, he did not know Ponz until he came to this country four years ago. He stated that Ponz had moved out of the residence about four months before trial, and that he did not know how to contact him, though he lived somewhere in the general area. The police had tried to contact Ponz but he did not respond.
Defendant sought a Clawans*fn1 jury instruction based on the fact that Ponz did not testify. The trial judge denied the defense request, finding that he was unavailable, neither the State nor its witness had any special control over Ponz, and there was no indication that his testimony would have been unfavorable to the State. Nevertheless, defense counsel in his summation commented on Ponz's failure to testify.
On January 7, 2010 the jury returned a verdict of guilty on the sole count of second-degree robbery. The judge sentenced defendant to seven years in prison with an eighty-five percent parole disqualifier and imposed the mandatory fines and penalties. This appeal followed.
On appeal defendant raises the following contentions for our consideration:
POINT I: THE TRIAL COURT ERRED IN BARRING TESTIMONY ABOUT THE ALLEGED VICTIM'S IMMIGRATION STATUS, WHICH WAS RELEVANT TO SHOW THE ALLEGED VICTIM'S POSSIBLE MOTIVE TO ...